Court to determine whether U.S. Fish and Wildlife Service must mitigate impacts of genetically modified crops

Environmental groups hail latest opinion as victory in fight against GM crops on protected lands

Migrating waterfowl rely on stopovers at wildlife refuges, where the use of genetically modified feed crops has been controversial. Bob Berwyn photo.

By Bob Berwyn

FRISCO — A Federal court this week set the stage for resolving a long-running conflict over the use of genetically engineered crops of 44,000 acres of land in the national wildlife refuge system administered by the Southeast Region of the U.S. Fish and Wildlife Service.

U.S. District Court Judge James E. Boasberg said that, even though the region has already agreed to stop planting GM crops, there may be ongoing effects. The judge set a hearing date of Nov. 5 to determine an appropriate remedy and urged the parties to meet before then to try and reach at least partial agreement.

At issue is the fact that the USFWS started using GM crops without doing an in-depth environmental study Instead, the agency relied on environmental studies done by a U.S. Department of Agriculture agency, the Animal and Plant Health Inspection Service, according to Tom MacKenzie, spokesman for the southeast region of the USFWS.

“We were sued three years ago for use of GMC crops … Planted by our farmers who help to feed the migrating waterfowl,” MacKenzie said. “We adopted from the APHIS review of these crops. It was our understanding that they were safe to use,” he said.

The three groups — Beyond Pesticides, the Center for Food Safety and Public Employees for Environmental Responsibility — asserted that USFWS violated the National Environmental Policy Act, the National Wildlife Refuge System Administrative Act of 1966, and the Administrative Procedures Act, by failing to conduct appropriate environmental analyses prior to authorizing such farming.

“We went back to the folks that had sued us and agreed to stop using the crops, but not stop farming, based on the needs of the refuges,” MacKenzie said. “We acknowledged that our NEPA needs to be enhanced,” he said.

PEER claimed this week’s ruling as the third victory in a series of lawsuits that is resulting in the removal of GM crops from federal wildlife preserves. In March 2009, the same groups won a similar lawsuit centering on the Prime Hook National Wildlife Refuge.  In 2011, the groups forced a legal settlement ending the planting of GM crops on refuges throughout the 12-state northeast region.

Although the judge has yet to issue a final ruling, PEER claims the latest ruling could prevent the USFWS from entering into cooperative farming agreements for GM crops on 128 refuges across eight states — at least until the agency completes environmental studies.

MacKenzie said the agency is in the early stages of starting those studies and hasn’t decided if it will do an in-depth Environmental Impact Statement, which requires a detailed evaluation of several alternatives, or a lower-level Environmental Analysis, which would lead to a finding of No Significant Impact.

The Nov. 5 hearing could determine whether additional remedies may be required to mitigate environmental damage on the Southeast refuges from GE crops already planted.

According to PEER, that could include a ban on pesticide spraying, enlarged buffers, and steps to prevent trans-genetic contamination.

“While we are happy with the result we are disappointed that the government needlessly prolonged this litigation,” said PEER counsel Kathryn Douglass.

Douglass said the government had tacitly conceded the merits of the suit in its court filing last spring. “The simple point we are making in case after case is that genetically modified crops have no legitimate role on a national wildlife refuge,” she said.

In a previous ruling, the same judge ruled that the FWS Environmental Assessment (EA) for GE planting in the Midwest region was adequate.

The ultimate meaning of that ruling is less clear due to facts that:

  • FWS proposed GM planting be phased out after five years;
  • GM planting is limited to the narrow purpose of transitioning former cropland purchased for refuge additions into successions of natural grasses; and
  • The programmatic nature of the Midwest EA may require a new environmental review for each refuge contemplating any GE agriculture.

“How GE crops can be judged to carry significant environmental impacts in the Southeast and not in the Midwest is difficult to understand and accept,” said Paige Tomaselli, staff attorney with the Center for Food Safety. “However, short of a much-needed nationwide settlement, this is good news in our fight to end the growing of GE crops on our nation’s wildlife refuges.”

Refuges allow farming because the feed is needed to sustain massive populations of migrating birds, but some refuges have been transitioning to using natural grasses. The practice of entering cooperative agreements with farmers helps save money, MacKenzie said, explaining that the farmers get some value for their crops and the refuges get food for migrating birds.

The main crops used for feed are corn and soybeans, and are mostly available in GM strains. Generally, refuge policy discourages the use of GM crops, unless that use is essential to accomplishing a specific refuge purpose.

In the string of lawsuits, environmental advocates have emphasized that the use of GM strains may conflict with the protection of wildlife, the main purpose of the refuges.

Some recent studies suggest that the planting of GM crops also has resulted in more frequent and increased applications of toxic herbicides, which has fostered an epidemic of “super weeds” as weeds have mutated.

Other studies suggest that GM farming has led to the spread of genetically modified DNA to conventional, organic crops and wild relatives.

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